KILLOL TRAVELS V. UNION OF INDIA

SCA/12500/2020

AI Insights

M/S Killol Travels filed a writ application under Article 226 of the Constitution of India, seeking to quash the order dated 30.10.2018 passed by the Principal Commissioner of Income-tax, Jamnagar, which rejected their application for condonation of delay in filing a return of income and claiming a tax refund. The application was initially rejected because the return was filed without the required audit report, and the notice under Section 139(9) was not responded to. The High Court found that the matter was suitable for the appellate tribunal and not for writ jurisdiction, emphasizing the need for the applicant to follow the statutory appellate process.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 802489 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 12-01-2021
• Assessment Year: misc
• Laws Referred To: Article 226 of the Constitution of India, Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: BANSI KARIA
• Keywords: Audit report; Defective return; Income Tax; Mandamus; Quashing; Refund of Tax; Writ application
• Section: 44AB; 119(2)(b); 139(9)

Judgement Text

"C/SCA/12500/2020 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 12500 of 2020 ========================================================== M/S KILLOL TRAVELS Versus UNION OF INDIA ========================================================== Appearance: BANSI M KARIA(9320) for the Petitioner(s) No. 1 for the Respondent(s) No. 1,2,3,4 ========================================================== CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE ILESH J. VORA Date : 12/01/2021 ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. By this writ­application under Article 226 of the Constitution of India, the writ­applicant has prayed for the following reliefs:­ 9(A) be pleased to admit and allow the petition; (B) be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 30.10.2018 passed by the Respondent No.03 in an Application under section 119(2)(b) dated 01.08.2018 and be pleased to quash and set aside Notice under section 139(9) dated 12.01.2017 and further the Order of Respondent no.3 dated 13.07.2017; and further be pleased to direct the Respondent Authorities to treat the Return of Income valid and further refund the amount of tax i.e. Rs.1,97,650/­ which is in excess after deduction of tax payable for that Financial Year; (C) Pending admission, hearing and final disposal of this petition, be pleased to direct the Respondent Authorities to consider the case of the petitioner and further be pleased to direct the Respondent Authorities to treat the Return of Income valid and further refund Page 1 of 4 C/SCA/12500/2020 ORDER the amount of tax i.e. Rs.1,97,650/­ which is in excess after deduction of tax payable for that Financial Year; (D) be pleased to issue directions to the Respondent Authorities to grant interest at 15% on the amount of refund claimed by the petitioner as per the provisions of section 243 of the Act of 1962; (E) pending admission, hearing and final disposal of this petition, be pleased to issue directions to the Respondent Authorities to grant interest at 15% on the amount of refund claimed by the petitioner as per the provisions of section 243 of the Act of 1962. (F) ad­interim reliefs in terms of paragraph 9(C) and (E) may be granted; (G) be pleased to pass such other and further orders necessary in the interest of justice. 2. It appears from the materials on record that the writ­applicant herein filed an application under Section­119(2)(b) of the Income Tax Act, 1961 on 01.08.2018 with a prayer to condone the delay for filing Return of Income and also for claiming refund of Rs.1,97,650/­. This application came to be rejected by the Principal Commissioner of Income­tax, Jamnagar vide order dated 30.10.2018. We may quote the relevant observation made in the paragraph­4 of the said order. “4. I have carefully considered the relevant facts and circumstances related to this case and also the report of the AO. It may be mentioned that the assessee filed its original return for AY 2016­17 on 01/10/2016. The assessee was required to file audit report u/s.44AB of I.T. Act, 1961 with the return of income. As the assessee has not filed online audit report with the return of income filed on 01/10/2016, therefore the return filed by the assessee was treated to be defective return in terms of section 139(9) of the I.T. Act and accordingly the CPC, Bengaluru issued notice u/s.139(9) dated 12/01/2017. However, the assessee did not respond to this notice issued by the CPC. Accordingly, the return filed by the assessee was treated to be defective return and not processed. It is also noticed that the assessee has got its books of account audited and the audit report u/s.44AB of I.T. Act, 1961 was also filed online on 16/10/2016. It has also been verified that the audit was got conducted in the prescribed time on 22/09/2016, even before filing of return on 01/10/2016. The audit report filed by the assessee online on 16/10/2016 has also been approved on 25/05/2017 which is Page 2 of 4 C/SCA/12500/2020 ORDER evidenced from the portal of the Income Tax Department. The assessee has submitted that as the return has been filed in time as also that the audit report has been filed online on 16/10/2016, therefore, the assessee was of the genuine belief that there notice u/s.139(9) of the I.T. Act, 1961 may not require to be responded. Now, the assessee has requested to condone the delay in filing revised return of income and claiming the refund of Rs.4,69,210/­ for AY 2016­17. Having considered the facts and circumstances of the case, it is noted that the assessee filed return in time as also filed online the audit report in time. The mistake on the part of the assessee was that the audit report was not filed with the return of income as also that the objection raised by the CPC vide notice u/s.139(9) dated 12/01/2017 was not responded. However, apparently there are no genuine reasons or compelling circumstances which may justify the assessee's case for not filing of audit report with the return of income or not responding to the notice issued u/s.139(9) of the I.T. Act, 1961. The assessee is a regular income tax assessee. The books of accounts are regularly audited u/s.44AB of the I.T. Act and these facts indicate that the assessee was well aware of the provisions of filing of audit report with the return of income. The fact that the assessee has even not responded to the notice issued u/s.139(9) of the I.T. Act indicate negligence on the part of the assessee. Considering all these facts the case of the assessee is not found fit for condonation of delay u/s.119(2)(b) of the Income­tax Act, 1961. Accordingly the application of the assessee for condonation of delay in filing of return for A.Y. 2016­17 is rejected.” 3. The afore­said order passed by the Principal Commissioner of Income­tax, Jamnagar dated 30.10.2018 is made the subject matter of challenge in the present writ­application. We brought to the notice of the learned counsel that the impugned order under Section­119(2)(b) of the Act 1961 is appealable before the tribunal. It appears from the submissions made by the learned counsel appearing for the writ­ applicant that the writ­applicant took up the issue on E­Nivaran Tab on many occasions, but according to the learned counsel, there is no response till this date. 4. We are not inclined to entertain this writ­application questioning the legality and validity of the order passed by the Principal Commissioner of Income­tax, Jamnagar almost more than two years back. If the writ­applicant intends to file an appeal before the appellate Page 3 of 4 C/SCA/12500/2020 ORDER tribunal, then he may do so in accordance with law. We may only clarify that as on date, if there are any proceedings of any nature pending before the respondent no.3, the same shall be disposed of at the earliest in accordance with law. 5. With the above, this writ­application stands rejected. (J. B. PARDIWALA, J) (ILESH J. VORA,J) A. B. VAGHELA Page 4 of 4 "